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2017 DIGILAW 1774 (RAJ)

Sarita W/o Bheem Singh v. Bheem Singh S/o Mani Ram Godara

2017-08-09

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. 1. This Transfer Application under sec.24 CPC has been filed for transfer of Civil Misc. Case No.18/2017 (Bheem Singh v. Sarita), filed by the respondent under sec.25 read with sec.13 of the Hindu Guardian & Wards Act, pending before the Family Court, Sriganganagar, to the court of Additional District Judge, Suratgarh, District Sriganganagar. 2. Briefly stated, marriage of t he parties was solemnized on 27.03.2000 at Pilibanga. Out of the wedlock, three children were born, namely Kirtika aged about 13 years, Vartika aged about 09 years and Ditasha @ Diva aged about 4 years. All three children are residing with the petitioner. The respondent is resident of Binjhbayla. He used to reside in joint family and his family depends purely on agriculture work for their living. 3. A petition under secs.25 and 13 of the Hindu Guardians and Wards Act was filed by the respondent-husband before Family Court, Sriganganagar. Transfer of this case, pending before the Family Judge, Sriganganagar to Suratgarh is sought on the ground that it is admitted position that parental house of the petitioner is situated at Suratgarh and all the three children are residing with the petitioner, of whom two children, namely Kartika and Vartika are studying in Shah Mastanaji Bal-Balika Ashram, Gurusar Modia, Tehsil Suratgarh, District Srigangangar and the third child, namely Ditasha @ Diva is studying at Suratgarh with the petitioner. 4. It was also contended that Sriganganagar is situated almost 70 kms from Suratgarh and the petitioner is residing at Suratgarh at her parental house with minor child. It was also stated that the petitioner has lodged an FIR on 21.06.2015 against respondent husband and other persons, for offences under secs.307, 324, 323, 406, 498A IPC at Mahila Police Station, Sriganganagar. Aforesaid FIR was registered as FIR No.126/2015 at the Mahila Police Station, Sriganganagar and after investigation, the Police has filed challan against respondent Bheem Singh and Prem Kumar for offences under secs.307, 323, 324, 498A IPC on 30.11.2015. The case is registered as Cr. Case No.9/2016 and the same is pending trial in the court of Additional Sessions Judge (WA), Sriganganagar. In that case, one daughter namely Vartika is also a witness. 5. Notice was issued and in response to the notice, the respondent appeared before this Court and filed reply. The case is registered as Cr. Case No.9/2016 and the same is pending trial in the court of Additional Sessions Judge (WA), Sriganganagar. In that case, one daughter namely Vartika is also a witness. 5. Notice was issued and in response to the notice, the respondent appeared before this Court and filed reply. In the reply, he admitted the fact of one pending case before Family Judge, Sriganganagar but opposed transfer of the case from Sriganganagar to the court of ADJ, Suratgarh. It was contended that the two girl children out of three are living in a hostel and are in the custody of management of said hostel and as such, are not in the immediate custody of their mother. So far as service of summons of the respondent, it was submitted that the summons were not allowed to be served by the petitioner in normal course. Official report says that it was with great difficulty that summons could be pasted on wall of petitioner's house and could not be served on her personally. Petitioner's family is influential in the area and so every trick was played for non-service of summons. 6. It was also contended that the petitioner concealed material fact that a Criminal Case No.224/2016 under secs.143, 342, 363, 427 and 452 IPC has also been filed by respondent against the petitioner, which is pending at Sriganganagar. It was also submitted that the petitioner has filed a criminal case against the respondent, which is also pending at Sriganganagar. The petitioner has been coming to attend both these cases from Suratgarh to Sriganganagar. As such, if the petitioner can come to Sriganganagar in these cases, there is no reason why he can not come to Sriganganagar for case related to custody of children. It was also contended that the petitioner has been come to attend the divorce case, pending before Additional District Judge, Hanumangarh, which was transferred from the Family Court, Sriganganagar and which is 80 kms from Suratgarh. It was also transferred at the instance of the petitioner by Hon'ble High Court vide order dated 28.03.2017. Therefore, prayer for transfer of present case is frivolous and has been made with ulterior motive of causing delay. Heard learned counsel for the parties. 7. In support of contentions on behalf of the petitioner, learned counsel for the petitioner submitted that inconvenience of the lady is to be looked into. Therefore, prayer for transfer of present case is frivolous and has been made with ulterior motive of causing delay. Heard learned counsel for the parties. 7. In support of contentions on behalf of the petitioner, learned counsel for the petitioner submitted that inconvenience of the lady is to be looked into. In support of his contentions, he placed reliance on judgment of this Court in S.B. Civil Transfer Application No.26/2017 (Smt Meena Pareek @ Devika @ Minakshi v. Bajrang Lal) decided on 10.05.2017. 8. Learned counsel for the respondent opposed transfer of the case and submitted that distance between Sriganganagar and Suratgarh is only 70 kms. It is admitted that a criminal case No.224/2016 for offence under secs.143, 342, 363, 427 and 452 IPC was filed by the respondent against her, which is also pending at Sriganganagar and the petitioner has also filed a criminal case against the petitioner, which is also pending at Sriganganagar. The petitioner has also been coming to attend both these cases against the respondent from Suratgarh to Sriganganagar. 9. In these circumstances, it cannot be said that it is very difficult for her to attend present case filed by the respondent under secs.25 & 13 of the Hindu Guardians & Wards Act before the Family Court at Sriganganagar. It is also important to note that the petitioner has been coming to attend a divorce case, pending before the Additional District Judge, Hanumangarh, which was transferred from the Family Court, Sriganganagar, which is also 80 kms away from Suratgarh. In support of his contentions, the learned counsel for the respondent placed reliance on {Arti Rani & anr v. Dharmendra Kumar Gupta, 2009 Supp AIR(SC) 758}. In the facts and circumstances of the present case, when the criminal case initiated by the petitioner against the respondent and the criminal case instituted by the respondent against the petitioner are pending at Sriganganagar and the both the parties are attending these cases at Sriganganagar then it would not be reasonable to transfer the case instituted under secs.25 & 13 of the Hindu Guardians & Wards Act pending before the Family Court, Sriganganagar to Surgarh. There is no justifiable ground for transfer of the case. The instant application is devoid of merits and the same is dismissed.